Istanbul Regional Court of Justice overturned Istanbul Serious Crime Court No 14’s judgment sentencing CHP MP Enis Berberoğlu to 25 years’ imprisonment and remanded the case for re-examination. Yesterday, the serious crime court reinstated its ruling as against this decision by Istanbul Regional Court of Justice, despite lacking the authority to do so. The court, despite recalling in its decision Court of Cassation case law to the effect that “the local court may not reinstate its judgment,” has referred the case back to Istanbul Regional Court of Justice

ALİCAN ULUDAĞ / CANAN COŞKUN

Istanbul Serious Crime Court No 14, has in blatant “non-recognition” referred back the ruling of the appeal court which overturned the judgment sentencing CHP MP Enis Berberoğlu to 25 years’ imprisonment for the intelligence agency trucks news that was published in our newspaper on the grounds, “Were it conceded that the secret had previously been revealed, the elements of the offence of espionage would not be established.” The court has accused the appeal tribunal of passing an unlawful ruling and interfering in the court’s independence. For the first time in the history of the Republic, a lower court has disregarded an upper court’s ruling. The consequence of the legal dispute between the two courts is that an MP who should be in parliament is in prison.

Our newspaper’s Ankara Representative Erdem Gül and former Editor-in-Chief Can Dündar were sentenced in May 2016 to jail terms of five years and five years ten months, respectively, on the count of “revealing the state’s information that required to remain confidential” for reporting news about the ammunition in the intelligence agency trucks. It was also decided in the ruling for prosecution over aiding an organisation to be conducted under a new case number. At the first session of the trial into aiding an organisation, joinder was ordered with the trial brought against Berberoğlu on charges of “aiding an organisation” and “procuring the state’s information that required to remain confidential for political and military espionage purposes”. In these proceedings that ended in June, Berberoğlu was sentenced to 25 years’ imprisonment on the count of “procuring the state’s information that required to remain confidential for political and military espionage purposes”, and placed in detention.

Case remanded to the court

Penal Chamber No 2 of Istanbul Regional Court of Justice, which, on the objection made to the decision, overturned Istanbul Serious Crime Court No 14’s ruling imposing the sentence, noting in its ruling that, were it to be conceded that the secret had previously been revealed through Aydınlık newspaper published on 21 January 2014 prior to the publishing of the photograph of the ammunition in the trucks in our paper on 29 May 2015, the elements of the offence of revealing information that required to remain confidential for espionage purposes would not be established, and remanded the case to the court. It was also stressed in the ruling that the passing of the ruling by the Court of Cassation in the Gül-Dündar case must be awaited and a retrial held accordingly.

Prosecutor initially sought referral back

The court, having completed its examination of the case file following the overturning ruling, attached credence to the prosecutor’s opinion in which he concluded there had been a breach of the law and sought a decision to refer it back to the court of appeal. It was stated in the opinion that the appeal court can pass an overturning decision but reversals made on the merits of the case must not be handled within the scope of Article 289 the Code of Criminal Procedure. The prosecutor noted in his opinion that the appeal court deliberated on whether the offence was constituted and, as such, had to examine the merits and rule itself, and thus sought the referral back of the case with the passing of a decision that “it is inappropriate to rule.”

Serious Crime Court No 14 decided in its examination made of the file without convening any hearing that, given that the appeal tribunal’s overturning ruling constituted a blatant breach of procedure and the law there was no other procedure to be performed by the court with regard to the overturning ruling, it was inappropriate to rule and for the file to be referred back to Penal Chamber No 2 of the Istanbul Regional Court of Justice for evaluation and action as the case demands.

It should have tried the case

The court bench stated in its ruling that the appeal court could issue “dismissal on the merits”, “correction”, “overturning of the judgment” and “re-examination” rulings on a case coming in front of it. The bench, stating that the court of appeal could overturn and remand a first-instance court’s decision purely with reference to the situations enumerated limitatively in the Code of Criminal Procedure, noted the following, “If the Regional Court of Justice, having examined the first-instance court’s decision on the merits, embarks on discussion of the evidence and thinks that there is an issue with the adjudicated matter or that the wrong conclusion was reached in examining and evaluating the evidence, is of the opinion that the evidence is deficient, declares there to be deficiencies with regard to the merits, and thinks there to have been an error in the legal classification of the act, the situation pursuant to Article 280 of the Code of Criminal Procedure whereby it must hear the case itself arises. It must, after taking the necessary measures, commence preparatory case procedures and hold the trial itself. With the Regional Court of Justice required to hold the trial itself, it has brought the deficiencies in question within the scope of Article 289 the Code of Criminal Procedure, overturned the ruling and remanded it to this court.”

It was noted in the ruling that it constituted a violation of the relevant statutory articles for the appeal court to examine the merits and discuss the adjudicated matter, point to deficiencies with regard to the merits, deliberate on whether the elements of the offence and other similar offences were established, and issue an overturning ruling stating that the sentencing ruling lacked justification.

Acted like the Court of Cassation

It was said in the ruling, recalling that the appeal court passed the overturning ruling on the grounds that the act imputed against Berberoğlu involved, rather than the offence of “revealing information that required to remain confidential for espionage purposes,” that of “procuring information that required to remain confidential for espionage purposes,”: “Veritably putting itself in the place of the esteemed Court of Cassation, it overturned on the merits and interfered with this court’s independence and freedom to rule. Indeed, the Regional Justice Chief Prosecution not only remained silent in the face of this erroneous procedure, but, despite having no powers of objection, conducted review procedure, thereby feeling the need to criticise the points we have voiced.”

Blatant breach of the law

It was noted in the ruling that the appeal court failing to exercise its jurisdiction and transferring its jurisdiction to the court that issued the initial ruling constituted a blatant breach of procedure and the law. The bench, in its ruling, declared the overturning ruling to be “An overturning ruling that goes so far as to interfere in the legal classification of the imputed act and in the assessment as to whether the elements of the offence were established” and concluded, “With reinstatement of the judgment possible even with recourse to the Court of Cassation, for this not to be accepted at the appeal stage will vest powers and authorities in the appeal court that do not exist at the Court of Cassation.”

THE CHP’S BÜLENT TEZCAN:

Proof that it is a political trial

CHP Deputy General Chair Bülent Tezcan said with reference to Istanbul Serious Crime Court No 14’s decision to refer back the appeal court’s ruling on Enis Berberoğlu, “It has performed a procedure that is forbidden in the law. It is laid down – expressly - in Article 284 of the Code of Criminal Procedure that, ‘Judgments remanded by the appeal court will not be reinstated.’ This ruling of the court, though, is a reinstatement decision without being named as such, in terms of content. It is most manifestly contrary to the law.” Tezcan said, “The appeal court must immediately release Enis Berberoğlu.”

Tezcan said, “There were once Special Jurisdiction Courts. It would appear that this court has now awarded itself Special Privileged Court status. We do not know where it obtained the privilege from and who it is getting backing from. Of course, we have guesses as to that, but, rather than guesses, we need to speak on the basis of correct information in the period ahead of us.”

Tezcan, indicating that the court wishes to exercise a power that does not exist in the law, said, “Indeed, it has performed a procedure that is forbidden in the law. It is laid down – expressly - in Article 284 of the Code of Criminal Procedure that, ‘Judgments remanded by the appeal court will not be reinstated.’ This ruling of the court, though, is a reinstatement decision without being named as such, in terms of content. It is most manifestly contrary to the law.”

Tezcan, stating that the decision was a striking example of the state into which the courts have fallen, commented, “Even this decision is actually a pointer that, rather than conducting a penal trial, there is a revenge trial over a political position. It is basically Serious Crime Court No 14’s decision that is void. I mean, it is more serious than exercising a power not vested in one. It has performed a procedure that the law tells it not to perform. It provides very clear indication that the Enis Berberoğlu trial is not a trial being pursued on the legal plane and is a trial that was initiated under a political instruction and is being continued for political motives. They have disgraced Turkey before the world. The appeal court must immediately release Enis Berberoğlu.”

Canduran: Technical error and abuse of position

Ankara Bar Association Chair Hakan Canduran stressed that the local court’s decision was erroneous. Canduran said that normally according to the law when an appeal ruling comes before a serious crime court it has no right of reinstatement. Canduran spoke as follows in assessing the decision for Cumhuriyet: “Now the court here proclaims that it is at odds with the appeal tribunal. It tells the latter if it doesn’t like its decision the latter has to hold the trial. But the appeal tribunal says that the former did not examine the evidence adequately and did not adduce the evidence. The first-instance court cannot send off the annexed decision and tell the latter to notify it of the decision. What the serious crime court must do is to re-examine the evidence in its possession. The court may as a result of this pass the same ruling. Or it may amend the ruling and must refer it to the appeal tribunal. In not so doing, it has made a technical error. The serious crime court is abusing its position here.”

Dangerous example

Canduran, pointing out that the court in not abiding by the appeal tribunal’s ruling had given rise to a negative example, said, “This opens the way for other courts to reinstate when faced by appeal rulings that are not to their liking. This is a dangerous situation. It will cause chaos in the judiciary.” A serious crime court presiding judge whom Cumhuriyet consulted and who serves at the Ankara Judicial Complex noted that both courts’ rulings are unlawful and said, “The appeal tribunal has no power to overturn on the merits like the Court of Cassation. On the other hand, the local court has no power of reinstatement as against appeal tribunal decisions. Even if the appeal tribunal’s decision is unlawful.”